Citation Nr: 0410968
Decision Date: 04/27/04 Archive Date: 05/06/04
DOCKET NO. 02-08 701A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant and his spouse
ATTORNEY FOR THE BOARD
J. M. Ivey, Counsel
INTRODUCTION
The appellant had active duty from October 1950 to August 1975,
including service in Vietnam from January 1968 through January
1969. This matter comes before the Board of Veterans' Appeals
(Board) from an April 1998 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. By that decision, the RO denied the appellant's claim of
entitlement to service connection for post-traumatic stress
disorder (PTSD). The appellant disagreed and this appeal ensued.
This case has been advanced on the docket because administrative
error resulted in significant delay in docketing the appeal. See
38 C.F.R. § 20.900(c) (2003).
In March 2003, the appellant testified at a hearing before the
undersigned Acting Veterans Law Judge designated by the Chairman
of the Board to conduct the hearing pursuant to 38 U.S.C.A. §
7107(c) (West 2002). A transcript of the hearing is of record.
The Board herein Remands the case to the RO via the Appeals
Management Center (AMC), in Washington, D.C., for further
evidentiary development and adjudication.
The discussion in this Remand is limited to the claim of service
connection for PTSD based on stressful experiences. It appears,
though, the appellant also asserts a claim of service connection
for a psychiatric disorder based on emotion difficulties following
and linked to service. This claim has not been adjudicated, and
is referred to the RO for appropriate action.
REMAND
Service connection for PTSD requires medical evidence diagnosing
the condition in accordance with 38 C.F.R. § 4.125(a) (2003); a
link, established by medical evidence, between current symptoms
and an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy and
the claimed stressor is related to that combat, in the absence of
clear and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the veteran's
lay testimony alone may establish the occurrence of the claimed
in-service stressor. 38 C.F.R. § 3.304(f) (2003).
As to the initial element of the claim, the evidence includes a VA
examination in November 1997 specifically excluding PTSD as an
appropriate diagnosis; it instead diagnosed depressive disorder.
However, VA clinical records in October 1997, April 1998, and May
1998, diagnosed PTSD. These conflicting diagnoses raise the
question of whether the record contains medical evidence
diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (2003),
and require a comprehensive VA psychiatric examination to
determine whether it is at least as likely as not that the
appellant has PTSD. See 38 U.S.C.A. § 5103A (West 2002); 38
C.F.R. § 3.159(c)(4) (2003) (VA's assistance obligations include
provision of a medical examination and obtaining of a medical
opinion if necessary to decide the claim).
Prior to scheduling the appellant for this examination, VA must
undertake additional efforts to verify the stressful occurrences
described by the appellant in his hearing testimony and in his
several statements of record. The evidence necessary to establish
the occurrence of a recognizable stressor during service to
support a diagnosis of PTSD varies depending upon whether the
appellant engaged in "combat with the enemy." See 38 U.S.C.A. §
1154(b) (West 2002); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6
Vet. App. 91, 98 (1993). Participation in combat, a determination
made on a case-by-case basis, requires the appellant's personal
participation in events constituting an actual fight or encounter
with a military foe or hostile unit or instrumentality. See
VAOPGCPREC 12-99. If VA determines the appellant engaged in
combat with the enemy and his alleged stressor is combat-related,
then his lay testimony or statement is accepted as conclusive
evidence of the stressors occurrence and no further development or
corroborative evidence is required - provided that such testimony
is found to be "satisfactory," i.e., credible and "consistent with
circumstances, conditions or hardships of service." Id. If,
however, VA determines either that the appellant did not engage in
combat with the enemy, or that he did engage in combat but the
alleged stressor was not combat related, then his lay testimony in
and of itself is not sufficient to establish the occurrence of the
alleged stressor. Instead, the record must contain evidence that
corroborate his testimony or statements. Zarycki, at 98.
It cannot be concluded at this time, on the existing record, that
the appellant engaged in combat with the enemy, nor has the
appellant made such allegations. The service medical and
personnel records do not, as the claims file is presently
constituted, include information or evidence indicating he was
wounded in service, received the Purple Heart Medal, or was
awarded a decoration signifying combat (such as a personal
decoration with a "V" device signifying valor, a Combat
Infantryman Badge, or other similar award clearly awarded for
performance in combat). The appellant argues accurately that the
service personnel records document his participation in five
campaigns in Vietnam. This documentation alone, however, is
insufficient to establish he was engaged in combat with the enemy.
All military personnel are to some extent participants in a
campaign, regardless of their military occupation or their duty
location. Being in-theater alone is insufficient to demonstrate
engagement in combat. See Gaines v. West, 11 Vet. App. 353, 361
(1998) (J. Holdaway, concurring).
Therefore, it appears likely the appellant's alleged stessors will
have to be verified. The service personnel records show he was in
Vietnam from January 27, 1968, to January 26, 1969. In several
statements and at the hearing in March 2003, he testified he
arrived in Chu Laun, Vietnam at the beginning of the TET
Offensive. During his first few days in Vietnam, he recalled, he
stayed in a civilian billet for several days without weapons, with
explosions and enemy activity just down the street, and that
acquaintances were killed in a blast near the billet where he was
staying.
The United States Armed Services Center for Research of Unit
Records (USASCRUR) in January 2001, responding to inquiries from
the RO, indicated that the National Archives and Records
Administration (NARA) and the U.S. Army Military History Institute
did not maintain a unit history submitted by the Army's
Procurement Agency Vietnam (USAPAV) for 1968. It provided instead
documents concerning the year 1967, which are not relevant to the
appellant's service with that unit a year later. Unit histories
are important in the verification of stressful events such as
mortar and rocket attacks. See Pentecost v. Principi, 16 Vet.
App. 124 (2002) (unit record description of rocket attacks on unit
objectively corroborates a claim of having experienced the
stressful event of rocket attacks); Suozzi v. Brown, 10 Vet. App.
307 (1997) (corroboration of every detail of a stressor under such
circumstances, such as the claimant's own personal involvement, is
not necessary). The records of USAPAV are located at the NARA
facilities in College Park, Maryland, in Record Group 472.7.5. A
search of these records may yield information as to the activities
of USAPAV in 1968, such as unit histories or reports and other
documents indicating its activities. Given the appellant's rank
at the time (lieutenant colonel), it is possible these records
might show the appellant's activities, and corroborate some or all
of his claimed stressors.
In his March 2003 testimony and in a separate statement that
month, the appellant identified several officers he served with,
including the man he claimed was with him during the several days
he stayed in a civilian billet without weapons during the TET
Offensive. For privacy reasons, this person's name, rank, and
other identifying information is not listed here, though it can be
found on page 11 of the March 2003 hearing transcript and on page
1 of the March 2003 statement. The appellant could not provide an
address for this individual, though it was possible this man was
retired and lived in Virginia. A possible means of locating this
person is to conduct an Internet search, which might produce the
addresses and telephone numbers of persons in the United States
(and specifically in Virginia) of this name. The appellant and
his representative are in the best position to conduct inquiries
of these and any other persons the appellant's feels might provide
information or evidence corroborating his claimed stressors.
Because the specific stressor incidents underlying the PTSD
diagnosis have not been verified, and insufficient other
information is of record to ascertain whether or not the veteran
witnessed these stressful episodes, further development is
required. In light of the above, the appeal is REMANDED for the
following:
1. Obtain the appellant's complete service personnel records,
including specific information about his military service, the
organizations in which he served in Vietnam, and his duties
therein. Associate all documents obtained with the claims folder.
2. Contact the appellant and his representative and encourage
each to continue efforts to locate and obtain information or
evidence from the individual listed on page 11 of the March 2003
hearing transcript and on page 1 of the appellant's March 2003
statement. To this end, inform the appellant and his
representative of the discussion above, and provide a reasonable
opportunity for them to respond.
3. Contact NARA in College Park, Maryland, and provide it with a
summary of the claimed stressors based on review of all pertinent
documents. Ask it to conduct a search of Record Group 472.7.5 for
unit histories of USAPAV for the period from January 1968 through
January 1969, with specific reference to any documents
corroborating the appellant's activities or claimed stressors in
January and February 1968. If unable to provide such information,
ask NARA to identify the agency or department that could provide
such information and conduct follow-up inquiries accordingly.
4. After conducting the development requested above, furnish the
appellant and his representative copies of the service medical
records and any responses from NARA, and afford him an opportunity
to respond thereto, to include submission of additional evidence
and argument. Associate all responses with the claims folder.
5. Make a specific determination, based on the complete record,
of whether the appellant was exposed to a stressor or stressors in
service, and if so, the nature of the specific stressor or
stressors. If the record establishes the existence of a stressor
or stressors, specify what stressor or stressors in service or
prior to service are established by the record. In reaching this
determination, address any credibility questions raised by the
record.
6. If, and only if, the record establishes the existence of a
stressor or stressors, then arrange for a VA psychiatric
examination to determine the diagnoses of all psychiatric
disorders that are present. Specify for the examiner the stressor
or stressors established by the record; instruct the examiner that
only those events may be considered for the purpose of determining
whether the appellant was exposed to a stressor in service.
a. The entire claims file and a copy of this REMAND should be
made available to the examiner prior to the examination. The
examination report should reflect review of pertinent material in
the claims file.
b. If a diagnosis of PTSD is made, the examiner should specify
(1) whether each alleged stressor found to be established by the
record by the RO was sufficient to produce PTSD; (2) whether the
remaining diagnostic criteria to support the diagnosis of PTSD
have been satisfied; and (3) whether there is a link between the
current symptomatology and one or more of the inservice stressors
found to be established by the record by the RO and found to be
sufficient to produce PTSD by the examiner. The examination
report should include the complete rationale for all opinions
expressed.
7. Review the record and ensure that all the above actions are
completed. When the record is complete and the psychiatric
examination, if appropriate, is adequate for rating purposes, the
claim of service connection for PTSD should be readjudicated with
consideration of 38 C.F.R. § 3.304(f). If either benefit sought
is not granted, furnish the appellant and his representative
copies of a supplemental statement of the case and a requisite
period for reply. Thereafter, return the claim to the Board for
further review, if otherwise in order.
Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case. The appellant has the right to submit additional evidence
and argument on the matter herein remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
JEFFREY J. SCHUELER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board
of Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).